Decision Date: 09/29/95 Archive Date:
10/02/95
DOCKET NO. 93-13 348 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for a seizure disorder.
REPRESENTATION
Appellant represented by: Oklahoma Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
B. A. Hines, Associate Counsel
INTRODUCTION
The veteran's active military service extended from March
1958 to November 1959.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 1992 rating decision of
the Regional Office (RO) in Muskogee, Oklahoma that denied
service connection for a seizure disorder.
In a February 1993 letter, the RO informed the veteran that
his left shoulder claim had previously been denied and that
he had not submitted new and material evidence to reopen the
claim. The veteran referred to his left shoulder condition
in his substantive appeal filed in March 1993. The issue of
whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
left shoulder injury has not been the subject of a
supplemental statement of the case. The RO should contact
the veteran to ascertain his intentions and take appropriate
action.
REMAND
The veteran's claim is "well grounded" within the meaning of
38 U.S.C.A. § 5107(a) (West 1991). That is, he has
presented a claim which is plausible. However, for the
reasons that follow, it appears that the statutory duty to
assist the veteran mandated by 38 U.S.C.A. § 5107(a) has not
yet been fully met.
The service medical records show that in September 1958 the
veteran reported a medical history of having seizures.
During March 1959, he was observed and treated in a military
hospital for a seizure. At the time of hospitalization, the
veteran reported a detailed medical history of having been
previously admitted to a hospital in late 1955 for a head
injury and remaining unconscious there for two weeks. He
said that he began to experience seizures the following year
at age 15.
At the time of medical discharge, the veteran was thought to
have grand mal epilepsy, Jacksonian, post traumatic (by
history) that pre-dated service. When in doubt as to the
true nature of a seizure, a neurological examination in a
hospital adequate to make such a study is necessary. On
this basis, further development is needed. In October 1959
a severe chronic passive aggressive type immature reaction
was also diagnosed. Therefore, the question of the presence
of a psychiatric disorder is also before the Board.
During a September 1992 VA examination, the veteran reported
that he was placed on medication to control his seizures
subsequent to his separation from military service. This
information was of record prior to the December 1992 rating
decision. However, the claims folder does not contain
evidence of these treatments or of the RO ever making a
request for these records. Therefore, the RO should make
arrangements to obtain such records, should they exist.
On that same VA examination, the veteran told the examiner
that he experienced his first seizure after he stood between
two tanks that fired simultaneously. According to the
veteran, he had a seizure on that same day. In essence, the
veteran is claiming that the trauma of this alleged incident
triggered his first seizure while in service. This
statement raises the question of aggravation should it be
determined that the veteran has a disorder that pre-existed
service. Therefore, the RO should obtain copies of a
hospital report of 1955 with regard to the head injury and
any medical records for treatment of seizures that pre-dated
military service.
VA adjudication must be based on medical opinion and such
opinions must be obtained where needed. See Colvin v.
Derwinski, 1 Vet.App. 171 (1991). The Board finds that an
examination and opinion by a neurologist and psychiatrist
may provide useful information as to the nature and extent
of the veteran's seizure disorder.
To ensure that VA has met its duty to assist the claimant in
developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The RO should ask the veteran to complete releases
providing the name and addresses of all medical care
providers who treated him before and after service for
seizures and emotional problems. After securing the
necessary releases, the RO should obtain legible copies of
these records, or document the unsuccessful attempts to
obtain them. The RO should specifically pursue the hospital
medical records of late 1955.
2. Following the above, the veteran should be scheduled for
a period of observation and evaluation at a VA Medical
Center. At the facility, the veteran should be examined by
a neurologist and a panel of two VA psychiatrists to
determine the nature and extent of any neurologic and
psychiatric disorder the veteran may now have. The
following should be accomplished:
a. Each psychiatrist should conduct a separate examination.
The report of examination should include a detailed account
of all manifestations of disorders found to be present. If
there are different psychiatric disorders, the board should
reconcile the diagnoses and should specify which symptoms
are associated with each disorder(s). If certain
symptomatology cannot be disassociated from one disorder or
another, it should be specified. All necessary special
studies or tests including psychological testing are to be
accomplished. The psychiatric diagnosis should be in
accordance with the American Psychiatric Association:
DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS.
b. All examiners must express an opinion as to whether the
symptomatology noted during service reflects the onset of a
neurologic or psychiatric disorder in service or the
existence of either disorder prior to service. If the
latter, they should state whether there was an increase in
severity of the disorder beyond the expected normal course.
Particularly, each examiner should consider the normal
findings of the test results of a September 1958
electroencephalogram, compared to abnormal findings of a
March 1959 electroencephalogram, and indicate whether the
test results demonstrate any onset or increase in severity
of a neurologic or psychiatric disorder during service. All
necessary tests should be conducted and the examiner should
review the results of any testing prior to completion of the
report.
The entire claims folder and a copy of this Remand must be
made available to and be reviewed by the examiner prior to
the examination. The specialists should provide complete
rationale for all conclusions reached.
3. The RO should review the claims folder and ensure that
all of the foregoing development actions have been conducted
and completed in full. If any development is incomplete,
appropriate corrective action is to be implemented.
Specific attention is directed to the examination report.
If the requested examination does not include fully detailed
descriptions of pathology and all test reports, special
studies or adequate responses to the specific opinions
requested, the report must be returned for corrective
action. 38 C.F.R. § 4.2 (1994) ("if the examination report
does not contain sufficient detail, it is incumbent upon the
rating board to return the report as inadequate for
evaluation purposes."). Green v. Derwinski, 1 Vet.App. 121,
124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464
(1992); and Ardison v. Brown, 6 Vet.App. 405, 407 (1994).
4. The RO must formally adjudicate service connection for
any neurological of psychological disorder found on
examination.
Following completion of these actions, the RO should
evaluate the veteran's claim. If the decision remains
unfavorable, the veteran and representative should be
provided with a supplemental statement of the case and
afforded a reasonable period of time in which to respond.
Thereafter, in accordance with the current appellate
procedures, the case should be returned to the Board for
completion of appellate review.
The Board intimates no opinion as to the ultimate outcome of
this case.
No action is required of the veteran until further notice is
issued.
JAN DONSBACH
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7272 (West 1991), only a decision of the
Board of Veterans' Appeals (Board) is appealable to the
United States Court of Veterans Appeals. The Remand
contained in this decision is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).
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